“We’re just like YouTube,” Megaupload lawyer tells Ars

Megaupload's US attorney says that his client is just like YouTube and that …

Megaupload's US attorney, Ira Rothken, has a succinct description of the US government case against his client: "wrong on the facts and wrong on the law."

The week has been a busy one for Rothken, a San Francisco Internet law attorney who has previously represented sites like isoHunt and video game studios like Pandemic. When I call, he's eating crab cakes and waiting for yet another meeting to start, but he has plenty of time to attack the government's handling of the Megaupload case.

In Rothken's words, the government is acting like a "copyright extremist" by taking down one of the world's largest cloud storage services "without any notice or chance for Megaupload to be heard in a court of law." The result is both "offensive to the rights of Megaupload but also to the rights of millions of consumers worldwide" who stored personal data with the service.

The best way to look at Megaupload, he says, is through the lens of Viacom's $1 billion lawsuit against YouTube—an ongoing civil case which Viacom lost at trial. (It is being appealed.)

For instance, Viacom dug up an early e-mail from a YouTube co-founder to another co-founder saying: "Please stop putting stolen videos on the site. We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site because we didn’t put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it."

"Whatever allegations that they can make against Megaupload they could have made against YouTube," he says of the government. "And YouTube prevailed!" (Rothken made a similar case when he represented search engine isoHunt in 2010, saying it was just like Google.)

Ira Rothken

Under this view, Megaupload should have been served with DMCA takedown notices (the site did have a registered DMCA agent, as required by law, though not until 2009). If rightsholders believed that was insufficient, they should have conferred with Megaupload's US counsel (the company has retained US attorneys for some time before the current action). And if that wasn't satisfactory, a civil copyright infringement lawsuit should have been filed, one that would not have taken the site down first and asked questions later.

Instead, the government's willingness to pursue the case as an international racketeering charge meant "essentially only sticking up for one side of the copyright vs. technology debate." The result, Rothken says, is "terrible chilling effect it's having on Internet innovators" who feature cloud storage components to their business.

The US Department of Justice released a lengthy statement to the press detailing the charges against Megaupload, while New Zealand police publicly offered crazy details of their bid to arrest Megaupload founder Kim Dotcom (born Kim Schmitz). "Police arrived in two marked Police helicopters," said New Zealand Detective Inspector Grant Wormald at a press conference. "Despite our staff clearly identifying themselves, Mr. Dotcom retreated into the house and activated a number of electronic locking mechanisms. While Police neutralised these locks he then further barricaded himself into a safe room within the house which officers had to cut their way into. Once they gained entry into this room they found Mr Dotcom near a firearm which had the appearance of a shortened shotgun. It was definitely not as simple as knocking at the front door."

"James Bond tactics with helicopters and weaponry have a detrimental effect on society as a whole."

This sort of thing makes Rothken furious. Using "James Bond tactics with helicopters and weaponry, and breaking into homes over what is apparently a philosophical debate over the balance between copyright protection and the freedom to innovate, are heavy-handed tactics, are over-aggressive, and have a detrimental effect on society as a whole," he said. In addition, the raid was a reminder that bills like the Stop Online Piracy Act "ought not to ever be passed, because these tactics [the helicopters, etc.] are so offensive that if you take the shackles off of government, it may lead to more abuse, more aggression."

Rothken also suggested that the timing of the raid was suspicious; "over a two-year period, they happened to pick the one week where SOPA started going south."

I asked about specific allegations in the indictment, including the government's quotation of internal e-mails showing employees asking for and uploading copyrighted material. Rothken wouldn't address any specifics, but he did claim the government had engaged in some highly selective editing, choosing a few "bad communications" out of terabytes of seized data. It's as if one were to "judge the character of a person by the three worst things they ever did as a college student and ignored all the things they did as an adult."

For now, the case remains in New Zealand, where questions of bail and then extradition are being handled by local courts. Though the entire case could take a long while to wind its way to completion, Rothken concludes, "Megaupload believes strongly it's going to prevail."

Spin room

This is not a view that convinces either the US government or major copyright holders. Michael Fricklas, general counsel of Viacom and the man overseeing the company's litigation against YouTube, finds the Megaupload/YouTube comparison to be "quite a spin."

"Kim Dotcom paid uploaders who were also in it for the money, and knew about lots of specific infringement."

"The indictment shows that Kim Dotcom was deeply involved in every aspect of the site, designed the site to encourage infringement, helped specific users find pirated content and improve the piracy experience, paid uploaders who were also in it for money, and knew about lots of very specific infringement," he told me this afternoon. "Thus, even under YouTube's extreme view of the DMCA protections, the DMCA would provide no defense. Criminal and civil proceedings each have a different set of processes and outcomes, and are certainly not mutually exclusive. There are many times—such as in the case of Megaupload—where it is entirely appropriate for both types of action to take place."

A Department of Justice spokesperson told me that the government only goes after groups that show enough evidence of "willful" criminal conduct to take them beyond the realm of merely civil litigation, and that Megaupload certainly qualifies thanks to the same factors mentioned by Fricklas.

As for the timing of the arrests, the DOJ says it had nothing to do with the SOPA debate. After nearly two years of investigation involving many different countries, the indictment against Megaupload was returned by the grand jury investigating the group on January 5 of this year—almost two weeks before the big anti-SOPA protests captured the Web's attention. The arrests themselves—complete with their police helicopters and safe room in-breaking—took place shortly after New Zealand police obtained arrest warrants.

What the case may show more than anything else is the sheer disparity between the dueling worldviews involved. Was the Megaupload takedown an offensive assault on innovators who may have, on a few occasions, done something a tiny bit naughty—or was it a massive Mega-conspiracy worthy of an international police takedown?

The guy has a point, Youtube does benefit from piracy. That doesn't mean Megaupload should be allowed to get away with it though. Plus the operations at Youtube and Megaupload aren't exactly a mirror image.

I would like to just point the obvious though. Go to Youtube.com, search for any new song and I bet you can find a pirated version with lyrics. Or a version with *No Copyright infringement intended*; these people honestly believe that will keep their video up. I don't know so much about movies, but if you try hard its not hard to find.

Youtube is a huge site and Google probably does a good job with take downs, but I would never imagine piracy to be 0 percent. The strange thing is that Google allows some regular user to make money off their videos by allowing ads to be shown in them. I than seen cases where some pirated videos that had millions of views and ads running in them but I know for sure the user didn't own the video. So isn't that Google rewarding people who pirated. I mean Google should check videos for piracy before they put ads in them; it shouldn't be up to the user's honesty.

The guy has a point, Youtube does benefit from piracy. That doesn't mean Megaupload should be allowed to get away with it though. Plus the operations at Youtube and Megaupload aren't exactly a mirror image.

I would like to just point the obvious though. Go to Youtube.com, search for any new song and I bet you can find a pirated version with lyrics. Or a version with *No Copyright infringement intended*; these people honestly believe that will keep their video up. I don't know so much about movies, but if you try hard its not hard to find.

Youtube is a huge site and Google probably does a good job with take downs, but I would never imagine piracy to be 0 percent. The strange thing is that Google allows some regular user to make money off their videos by allowing ads to be shown in them. I than seen cases where some pirated videos that had millions of views and ads running in them but I know for sure the user didn't own the video. So isn't that Google rewarding people who pirated. I mean Google should check videos for piracy before they put ads in them; it shouldn't be up to the user's honesty.

So Google can have blind eyes and but Megaupload can not ?

Just because a video has ads running in it doesn't mean the user is getting paid for it.

I would like to just point the obvious though. Go to Youtube.com, search for any new song and I bet you can find a pirated version with lyrics. Or a version with *No Copyright infringement intended*; these people honestly believe that will keep their video up. I don't know so much about movies, but if you try hard its not hard to find.

Thanks for the inspiration. I did a search on Youtube for "copyright intended" and got plenty of results. :-)

Granted helicopters might've been overkill but if the guy ran into a saferoom with a weapon then I'm thinking he probably isn't all there anyway. It's not like it's normal for police to break into your home and murder you...or use helicopters to do so, but I would assume those were at least marked.

Granted helicopters might've been overkill but if the guy ran into a saferoom with a weapon then I'm thinking he probably isn't all there anyway. It's not like it's normal for police to break into your home and murder you...or use helicopters to do so, but I would assume those were at least marked.

They "found him near" the shotgun. It was not in his hand. They do not get more precise than "near" so it's impossible to read much into it other than he keeps a weapon in his safe room. Well, I keep one in my bedroom ... that doesn't mean I sleep with a weapon in my hand!

Just because a video has ads running in it doesn't mean the user is getting paid for it.

What, I thought YouTube only showed ads if the user wanted to get paid for them.

I think youtube's contentID system has an option for allowing videos to use one's content, but have those videos have ads that go to the rightsholder of said content.

Basically, yea. Content owners set up a list of their products that go into the contentID system. They can also specify what action should be taken for each one(or as a group), from blocking it completely, region-specified blocking, ads, or no action.

Some owners block, some block in certain areas, but most just choose the ad option, and the content owner gets paid for the ads, not the uploader. They also normally include a link to the artist's official youtube "mix", and sometimes a link to a music store to buy the track directly. (under the like/dislike bar)

So, just because there are a lot of songs on youtube doesn't mean they're pirated. Studios can block them if they want, but they don't because they get paid for people watching them. MegaUpload is a completely different story, so the comparison there is weak at best to me. Back in youtube's early days, maybe. Now? Not so much...

The guy has a point, Youtube does benefit from piracy. That doesn't mean Megaupload should be allowed to get away with it though. Plus the operations at Youtube and Megaupload aren't exactly a mirror image.

So Google can have blind eyes and but Megaupload can not ?

This is exactly the point their attorney was making. At least, the DOJ should be serving a warrant to the US legal rep of MegaUpload. So this "sting" operation is supposed to show others how they are going to enforce SOPA before it becomes law ?.

Granted helicopters might've been overkill but if the guy ran into a saferoom with a weapon then I'm thinking he probably isn't all there anyway. It's not like it's normal for police to break into your home and murder you...or use helicopters to do so, but I would assume those were at least marked.

They "found him near" the shotgun. It was not in his hand. They do not get more precise than "near" so it's impossible to read much into it other than he keeps a weapon in his safe room. Well, I keep one in my bedroom ... that doesn't mean I sleep with a weapon in my hand!

Maybe you should because, you know, the Man is out to take away your freedoms (and your guns).

And you find that so surprisingly? Many laws are based on the common sense including Internet laws and most Arsians here make good common sense excepted for a few or they wouldn't be here posting giving their points of view of the matter, instead of trolling.

[on topic] Our government has this little bias within itself is that it gets into this habit of making an example or two out of the foreigners, "Look, our beloved fella Americans, this is what you all are going to get, if you.."

To prove that I am right, all American sites shut their doors right after what happened to Megaupload. Not a single arrest made on American sites.

I could be wrong but in U.S. when a warrant is being served by the state the lawyer of the suspect be notified before the search take place and the lawyer will let the suspect know days ahead when and where he's expecting the warrant. I guess the feds did it differently than the state did it.

The new Zealand Police felt it was necessary to bring in helicopters to arrest a man whose alleged crimes do not (normally) involve any threat of physical violence? This is about copyright, not a narcotics bust!

Granted, DotCom's reaction was ultimately foolish, but the confusion of helicopters swarming around one's home could spook anyone into doing something stupid.

It's a good example as to why SOPA should never be entertained as actual law. Even with their hands tied, armed government agents stormed a guy's home over an issue of copyright. It's so absurd. Take this to a court of law and determine fault before taking down the site, and cool it with the stormtroopers.

Case in point, I needed a copy of STALKER super mod pack 2.4, and megaupload was one of only two providers. A legitimate file was nixed as I stared at the US takedown notice in place of a website. So obnoxious as even the notice stated the site was charged with infringement and criminal conspiracy, but of course it's not even brought to trial yet, so the site is guilty before proven innocent. The government has stated they are "working" on getting the legit files back up, but I'm not holding my breath.

I ended up simply torrenting the fucking thing. This was just so wrongly handled, as most things having to do with government and the Internet.

The new Zealand Police felt it was necessary to bring in helicopters to arrest a man whose alleged crimes do not (normally) involve any threat of physical violence? This is about copyright, not a narcotics bust!

He had a criminal history and engaged in strange behaviors. The fact that he ran to a safe room that had a shotgun shows their caution was warranted.

Youtube is a huge site and Google probably does a good job with take downs, but I would never imagine piracy to be 0 percent. The strange thing is that Google allows some regular user to make money off their videos by allowing ads to be shown in them. I than seen cases where some pirated videos that had millions of views and ads running in them but I know for sure the user didn't own the video.

You know it's funny that Google is really good at taking down porn but pirated content will sit there for a while. Oh that full movie broken up into 7 parts uploaded by sexydawg7 isn't legit? I guess we will remove that.

Google is half-assed about piracy with Android as well. It's pretty shameful when people pirate $1 games even though their monthly cell bill is $80. Cue piracy-defenders who will claim they wouldn't have bought it anyways. Yea I'm sure they would never buy games and spend the time saved at a homeless charity instead.

There's a lot of spin going on here. The government went total bat-shit going after Megaupload and everything associated with it. Excessive, insane, and not surprising at all.

Quote:

Instead, the government's willingness to pursue the case as an international racketeering charge meant "essentially only sticking up for one side of the copyright vs. technology debate."

That's par for the course. The government entirely takes the side of copyright, versus technology and everywhere else.

But MU isn't the innocent lamb Rothken is making them out to be. I hope his court defense is stronger than that, because even as much as I despise MPAA and copyright excess, it would be tough to buy into it with a straight face.

They "found him near" the shotgun. It was not in his hand. They do not get more precise than "near" so it's impossible to read much into it other than he keeps a weapon in his safe room. Well, I keep one in my bedroom ... that doesn't mean I sleep with a weapon in my hand!

In New Zealand, if you have a firearms licence, then the firearm must be stored securely at all times. If it's not in the approved firearms safe (shotguns are B-cat, so not just any old A-cat safe), then you can and will lose your licence (and firearms).

And as for people saying that helicopters were overkill, check out the size of his mansion. It's worth $30million, and is absolutely massive. Quite possibly the largest house in New Zealand! They had warrants for a number of people, and if they had shown up with too few resources, then some may have fled. Although, it would have been funny to see two uniforms rock up and attempt to arrest half a dozen people there...

"or was it a massive Mega-conspiracy worthy of an international police takedown?"

Whatever it was it was not a conspiracy as that would require some form of secrecy in the action undertaken. On the contrary

Quote:

It's not like it's normal for police to break into your home and murder you...or use helicopters to do so, but I would assume those were at least marked

Actually, I think that if you look at precedents in history it's rather more normal for police forces to go into houses looking to kill someone (for whatever reason) than it is for them to feel the need for a heavily armed assault team to take down a... copyright offender.

Did you see them come all weapons blazing when they wanted to arrest DSK or Madoff? ?No. I think dotcom had every reason to panick in that situation.

Granted helicopters might've been overkill but if the guy ran into a saferoom with a weapon then I'm thinking he probably isn't all there anyway. It's not like it's normal for police to break into your home and murder you...or use helicopters to do so, but I would assume those were at least marked.

They "found him near" the shotgun. It was not in his hand. They do not get more precise than "near" so it's impossible to read much into it other than he keeps a weapon in his safe room. Well, I keep one in my bedroom ... that doesn't mean I sleep with a weapon in my hand!

Just a theory but if the police hadn't arrived in such a threatening way, maybe it would have been a straight forward arrest. You aren't exactly at your most logical after being awoken at the crack of dawn either.

Just a theory but if the police hadn't arrived in such a threatening way, maybe it would have been a straight forward arrest. You aren't exactly at your most logical after being awoken at the crack of dawn either.

...at the crack of dawn, by helicopters full of armed troops touching down and storming your house. I reckon I'd be grabbing anything I could fight back with too...

I was totally on MegaUploads side, until I realised it was Kimble in another guise. Yeah, ok, I'm slow, not being a MegaUpload user it never interested me who ran the place, but I do remember his Brabus Merc 10 years ago...

Gotta love the guy, but do a wikipedia, or any other search on Kim Schmitz and tell me he was just trying to turn an honest buck :)))

While Kimble and the Megaupload site may have been in some questionable stuff, I do think the way this operation has been conducted has been excessively heavy-handed. Police helicopters for a copyright infringement case?!

"check out the size of his mansion. It's worth $30million, and is absolutely massive. Quite possibly the largest house in New Zealand!"

Ever wonder how they could make so much money doing what Hollywood says they can't?

I looked at a few of the emails about sharing and they were pretty casual; "listen to this mp3" or "seen this movie yet" not uploading or sharing thousands of links. Just what friends tend to do. That's the real insanity is that it makes average things average people do, illegal.

How did that work with prohibition or the endless drug war? This feels on the same level.

It would make much more sense to me if they went after the folks that caused this economic meltdown that nearly destroyed the country that a few infringers. Who made more money? DotCom or the CEO of Bank of America - oh, but BoA gets a bail out. Flight risk? Heck, Dotcom doesn't even own a jet.

This has a lot more to do with the war between Mega and UMG and shutting down what was going to me a competitive model of business for a lot of independent musicians. Again we watch a technology (even flawed) get destroyed before it gets off the ground.

This serves DOJ because wikileaks and people like anonymous use file host to spread their "evil" deeds. I'm sure the Arab spring shook the boots of some in Washington DC who are well aware of the spread between them and the average person. It was a "win-win"

The timing is odd. Chances are the US expected SOPA to pass without much notice. I suspect SOPA was going to cya for doing this but when it didn't, it was too late to call it off. That's my hunch. I suspect we'll continue hearing about "conspiracy" and "racketering" to keep the stakes high.

Dotcom was no angel but was he evil enough to tear down a sector of new technology? Did he brimg the coumtry to ruin like press releases say? Was it worth driving more business away from the US or blocking US ip addresses? The great firewall of China was developed with the help of US business' and the original purpose was to prevent piraracy. Why MegaUpload and not warehouses of Gucci handbags?

There's only a couple of contexts this makes sense and neither one has the US best interests in mind.

The new Zealand Police felt it was necessary to bring in helicopters to arrest a man whose alleged crimes do not (normally) involve any threat of physical violence? This is about copyright, not a narcotics bust!

He had a criminal history and engaged in strange behaviors. The fact that he ran to a safe room that had a shotgun shows their caution was warranted.

It was also a large estate which makes it more difficult to surround.

There is a line between caution and excessiveness. Helicopters can't break down a safe-room door or disarm a man with a firearm. And that his criminal history is in white collar crime (data security and financial fraud crimes) -- nothing with a pattern of violence -- I really do believe the use of helicopters crossed that line to excessiveness.

This lawyer has it right. The problem is that we live in an age in the U.S. where you are declared guilty until proven innocent, a total attack on our rights. This is what happens when a gov. usurps so much power for itself. Powers that it doesn't have if we truly lived by our Constitution. The U.S. gov. is so out of control that they think a law passed in Washington, DC, has jurisdiction in a foreign country, talk about arrogance.